Digital Millennium Copyright Act (DMCA) Safe Harbor Provisions for Online Service Providers: A Legal Overview

Digital Millennium Copyright Act (DMCA) Safe Harbor Provisions for Online Service Providers: A Legal Overview

March 30, 2020
Digital Millennium Copyright Act (DMCA) Safe Harbor
Provisions for Online Service Providers: A Legal Overview
In 1998, Congress enacted the Digital Millennium
induces or materially contributes to the infringing conduct.
Copyright Act (DMCA), Pub. L. No. 105-304, to usher
Prior to the DMCA, internet companies that transmitted and
copyright law into the digital era. The ease and efficiency
stored user-generated content were concerned about the
of digital copying and distribution seemingly threatened to
legal implications of hosting infringing material on or
increase infringing activity and undermine the rights of
through their systems and platforms.
copyright holders. Some internet companies feared that if
they were held liable for infringing material hosted on their
The Safe Harbor Provisions
platforms, it would impair their business models and stifle
To address these concerns, the DMCA limits the liability of
technological innovation. As a compromise, Congress
OSPs for copyright infringement. Section 512 includes four
created the DMCA “safe harbor” provisions, codified at 17
different safe harbors, limiting the OSPs’ liability for
U.S.C. § 512 (section 512). These safe harbors shelter
infringing material that OSPs (a) transmit, route, or provide
online service providers (OSPs) from liability for indirect
connections for through their systems; (b) cache or
copyright infringement on their platforms under certain
temporarily store on their systems; (c) store on their
conditions, while also encouraging OSPs to cooperate with
systems at the direction of their users; and (d) link or refer
copyright owners in combating infringement online.
to the online location of, by using information location
tools, such as directories.
Copyright Basics
Copyright law grants creators of expressive works a set of
The safe harbor provisions do not generally require OSPs to
exclusive rights in their creations. The central purpose of
monitor their own systems actively for infringing materials.
copyright law is to encourage the creation and
With the growth of online platforms that exist primarily to
dissemination of knowledge and learning by providing
host user-generated content (e.g., YouTube), the section
incentives for the creation of new works.
512(c) safe harbor has grown in significance.
Copyright protection attaches to a broad range of creative
Eligibility for Safe Harbors
expression, including literary works (including computer
Each safe harbor provision has its own eligibility
code); musical works; dramatic works; choreographic
requirements, but there are three general requirements that
works; pictorial, graphic, and sculptural works; audiovisual
apply to all four safe harbors.
works (movies and television); architectural works; and
sound recordings. Copyright holders have the exclusive
First, the entity seeking protection under section 512 must
right to prepare derivative works, and to reproduce,
meet the statutory definition of “service provider,” a
distribute, and publicly display or perform their works. The
definition that varies depending on which safe harbor
current copyright term generally lasts for the life of the
provision applies. For section 512(c), a service provider is
author plus seventy years. An important limitation on these
defined as “a provider of online services or network access,
rights is fair use, a judicially created doctrine that permits
or the operator of facilities therefor.” This definition
certain socially valuable uses (e.g., quotations for literary
appears to be purposefully broad and is understood to
criticism) based on four factors: (1) the purpose and
encompass (at a minimum) providers offering email
character of the use; (2) the nature of the underlying
services, hosting services, and internet access. This
copyrighted work; (3) the amount and substantiality of the
definition seemingly includes entities that are not in the
copyrighted work taken; and (4) the use’s effect on the
business of providing online services, but incidentally
market for the copyrighted work.
perform such functions (e.g., a media company with a
website that hosts user comments).
To enforce their rights, copyright holders may file lawsuits
against alleged infringers—that is, persons who prepare
Second, the OSP must “adopt[] and reasonably implement[]
unauthorized derivative works, or reproduce, distribute, or
. . . a policy that provides for the termination in appropriate
perform the copyrighted work without permission. Persons
circumstances of” users who are determined to be “repeat
who take one of these actions themselves are called direct
infringers” of copyrighted material. The OSP must also
infringers. In some situations, third parties can be liable for
inform users that it has a method of terminating repeat
the direct infringement of another person. Vicarious
infringers’ accounts. The OSP’s process of identifying and
liability occurs when a third party has the legal right and
sanctioning repeat infringers does not need to work
practical ability to control infringing activity and receives a
perfectly to satisfy this provision. Cases such as Ventura
direct financial benefit from the infringement. Contributory
Content, Ltd. v. Motherless, Inc., 885 F.3d 597 (9th Cir.
liability arises when a third party has actual or constructive
2018), hold that the termination policy simply needs to
knowledge of specific instances of infringement, and
work a reasonable amount of the time. This case also
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Digital Millennium Copyright Act (DMCA) Safe Harbor Provisions for Online Service Providers: A Legal Overview
suggests that the details of the repeat infringer policy need
of material on its platform, or directly inducing users to
not be written, just that the site must inform subscribers of
upload infringing content. The ability of OSPs to remove
its policy in “appropriate circumstances.”
material from their platforms or to exclude users is not in
itself enough to constitute sufficient control.
Third, the OSP must “accommodate[]” and cannot
“interfere with standard technical measures” that exist to
Third, an OSP must designate an agent to receive
combat copyright infringement. The statute defines
notifications of infringing content hosted on its platform.
“standard technical measures” as those “used by copyright
The OSP must make the name and contact information of
owners to identify or protect copyrighted works” and that
its agent available to the public on its website and register
were “developed pursuant to a broad consensus of
the designated agent with the U.S. Copyright Office.
copyright owners and service providers.” These measures
must be available to all on “reasonable and
The Notice-and-Takedown Process
nondiscriminatory terms” and must not “impose substantial
When an OSP is notified of infringing content on its
costs on service providers.” The U.S. Copyright Office has
platform, this triggers statutorily delineated procedures
questioned the efficacy of this provision, noting that there is
known as the notice-and-takedown process. First, the OSP
nothing that currently qualifies as a “standard technical
must “expeditiously . . . remove[ ] or disable access to” the
measure” because no measure with “broad consensus” has
allegedly infringing material. Next, the OSP must take
emerged through a “multi-industry . . . process.”
“reasonable steps” to notify the user who uploaded the
infringing content about its removal. If the original
Section 512(c) Eligibility Requirements
uploader responds by sending a counter-notification to the
Under section 512(c), the most widely used safe harbor,
OSP claiming the content was not infringing, the OSP must
OSPs must satisfy three further eligibility requirements.
restore the removed content in ten to fourteen business
days. The OSP is not required to restore the removed
First, an OSP cannot have actual or constructive knowledge
content if the person who submitted the takedown notice
of the infringing material on its platform. Actual knowledge
files an action in court against the original uploader within
arises when a copyright owner notifies an OSP of infringing
fourteen days of receiving the OSP’s notice of restoration
material on its platform. Constructive knowledge,
and notifies the OSP of the pending lawsuit.
articulated in the “red flag” provision, arises when an OSP
is “aware of facts or circumstances from which infringing
If an OSP does not abide by the above procedure, it can be
activity is apparent” to a reasonable person. The bar for
held liable for infringement. Section 512 also creates a
establishing knowledge under the red flag provision is
cause of action against “[a]ny person who knowingly
generally considered to be high. In Perfect 10, Inc. v.
materially misrepresents” content as infringing in a
CCBill LLC, 488 F.3d 1102 (9th Cir. 2007), for example,
takedown notice. As part of this provision, copyright
providing services to a site titled “stolencelebritypics.com”
owners must consider common defenses to infringement,
was insufficient to establish constructive knowledge of
such as fair use, before sending a takedown notice.
infringing content.
The Safe Harbors in Action
The knowledge requirement further demands that an OSP
The U.S. Copyright Office recently reported on
be aware of specific and identifiable instances of
stakeholders’ opinions regarding section 512’s
infringement; general awareness of infringing activity on its
effectiveness. OSPs generally praised the provision,
platform is insufficient. However, if an OSP deliberately
expressing the view that the safe harbors are vital to the
employs measures to avoid learning about specific
growth and success of an open and innovative internet. On
infringing material, such “willful blindness” may be
the other hand, many content creators and copyright holders
considered equivalent to actual knowledge. If an OSP
criticized section 512, with some suggesting that a greater
receives actual or constructive knowledge of infringement,
it has a legal duty to “expeditiously” remove the infringing
burden be placed on OSPs to police their own platforms for
infringing content. They argued that OSPs now have the
material through the takedown process described below.
technological expertise to address infringement on a large
Second, an OSP may take advantage of section 512(c) only
scale, noting that the resources required for content creators
if it “does not receive a financial benefit directly
to monitor the internet for infringement have proven to be
attributable to the infringing activity,” and it has the legal
prohibitively expensive. Many content creators cited an
right and practical “ability to control such activity.” The
immense increase in takedown notices as an indication that
courts’ understanding of direct financial benefit has evolved
section 512 has not “sufficiently addressed the continued
over time. Initially, courts seemingly favored a narrower
proliferation of online infringement.”
interpretation, requiring that the infringing activity serve as
a draw for paying customers, rather than simply an added
Acknowledgment: This In Focus was originally drafted by
benefit to the platform. More recently, however, courts
Alexandra Blankman, Legal Intern, CRS American Law
appear willing to consider benefits such as advertising
Division.
revenue in the direct financial benefit analysis.
For an OSP to exert the requisite amount of control to
Kevin J. Hickey, Legislative Attorney
disqualify it from section 512(c)’s safe harbor, it must have
IF11478
substantial influence on its users’ activities, such as
dictating the appearance of content, forbidding certain types

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Digital Millennium Copyright Act (DMCA) Safe Harbor Provisions for Online Service Providers: A Legal Overview

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